The Equal Employment Opportunity Commission (EEOC) recently issued its highly anticipated Enforce-ment Guidance regarding employer use of arrest and conviction records and compliance with Title VII of the Civil Rights Act of 1964. The EEOC has long ex-pressed its commitment to the issue, as evident in its 1987 and 1990 releases, as well as the meeting it held to discuss the issue on July 26, 2011. The Guidance results from the EEOC's findings that criminal record exclusions generally cause a disparate impact and may be founded on incomplete and inaccurate information. To address the problems it identified, the EEOC issued the Guidance and a corresponding "Best Practices" list for employers to consider to ensure compliance with Title VII.

Guidance

The EEOC advises employers to reconsider their pre-sent applications and remove blanket, "catch-all" questions that ask whether the individual has been convicted of any crimes. If and when an employer chooses to make inquiries on this topic, the employer should be able to demonstrate that the criminal back-ground information is job-related and consistent with business necessity.

The Guidance also makes clear that the EEOC believes the use of arrest records in employment decisions is neither job related nor consistent with business neces-sity, and therefore, does not comply with Title VII. In fact, the use of arrest records has long been discour-aged by the EEOC because an arrest, unlike a convic-tion, does not establish that criminal conduct has oc-curred, nor does it report the final outcome of the ar-rest. Accordingly, an employer's decision to exclude an applicant on the basis of an arrest alone would be considered a violation of Title VII. However, con-sistent with the overarching theme of the Guidance, an employer may consider the underlying conduct refer-enced in the arrest report if the conduct makes the indi-vidual unfit for the position at issue.

Somewhat similar to the mitigating conditions availa-ble in the Adjudicative Guidelines for Determining Eligibility for Access to Information, the Guidance counsels employers to consider the following factors when analyzing an applicant's criminal history:

  1. the nature and gravity of the offense or offenses (which the EEOC explains may involve evaluating the harm caused, the legal elements of the crime, and the classification, i.e., misdemeanor or felony);
  2. the time that has passed since the conviction and/or completion of the sentence (which the EEOC explains as looking at particular facts and circumstances and evaluating studies of recidivism); and
  3. the nature of the job held or sought (which the EEOC explains requires more than examining just the job title, but also specific duties, essential functions, and environment).

As in the whole person concept in clearance decisions, the EEOC indicates its preference for employer use of individualized assessments when making employment decisions based on criminal background information, and these assessments can be offered by the employer in response to a challenge from the EEOC or an indi-vidual litigant. This assessment includes:

  • The facts or circumstances surrounding the offense or conduct;
  • The number of offenses for which the individual was convicted;
  • Older age at the time of conviction, or release from prison;
  • Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
  • The length and consistency of employment history before and after the offense or conduct;
  • Rehabilitation efforts, e.g., education/training;
  • Employment or character references and any other information regarding fitness for the particular position; and

Whether the individual is bonded under a federal, state, or local bonding program.

Criminal Background and Security Clearance

The EEOC acknowledges that some industries are subject to federal statutory and/or regulatory requirements that prohibit individuals with certain criminal records from obtaining or holding particular positions. By way of example, the EEOC notes that "federal law excludes an individual who was convicted in the previous ten years of specified crimes from working as a security screener or otherwise having unescorted access to secure areas of an airport."

Similarly, Title VII includes a national security exception that permits an employer to decline to employ an in-dividual because he or she cannot satisfy the federal security clearance requirements. . In other words, if a se-curity clearance is required for the applicant's position, an employer may in some circumstances deny employ-ment based on the applicant's failure to obtain a security clearance if the following requirements are met:

  • First, the position must be subject to national security requirements imposed by federal statute or Executive Order.
  • Second, the adverse employment action must result from the denial or revocation of a security clearance.

Thus, the exception only permits an employer to revoke an offer of employment or terminate an employee after the government has issued an unfavorable security clearance determination. It seemingly does not apply to sit-uations where an employer chooses not to hire an applicant because the applicant discloses a criminal record that would make it difficult for the applicant to obtain a security clearance.

Questions therefore remain about whether an employer hiring for national security positions may continue to utilize a blanket criminal background question on its applications. The answer appears to be yes, but with cau-tion. The overarching point of the EEOC's Guidance is that an employer may lawfully consider an applicant's criminal record in making an employment decision, provided the criminal record is relevant to the job position and denying employment on that basis is consistent with a legitimate business necessity. For positions that re-quire a security clearance, the extent and nature of an applicant's criminal history is, of course, highly relevant to whether the applicant will be able to obtain a clearance (and therefore satisfy the minimum job require-ments). Significantly, EEOC Commissioner Victoria Lipnic observed in the Guidance that "[there may be times] when particular criminal history will be so manifestly relevant to the position in question that an em-ployer can lawfully screen out an applicant without further inquiry." Furthermore, in arguably borderline cas-es—for example, where the applicant discloses an isolated yet serious criminal offense that occurred decades ago—the employer may be able to point to the potential time and cost associated with adjudicating a security clearance application as a business necessity that warrants excluding the applicant from employment. Most importantly, the employer should be sure to incorporate into all employment decisions (1) consideration of the three factors identified by the EEOC in the Guidance and discussed above; (2) an individualized assessment of the applicant; and (3) implementation of "Best Practices" patterned on the list provided by the EEOC.

Best Practices

In an effort to provide practical implementation guidance, the EEOC also provides a "Best Practices" list for employers' consideration:

  • Eliminate policies or practices that exclude people from employment based on any criminal record;
  • Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination;
  • Develop a narrowly-tailored written policy and procedures for screening for criminal records;
  • Identify essential job requirements and the actual circumstances under which the jobs are performed;
  • Determine the specific offenses that may demonstrate unfitness for performing certain jobs;
  • Identify the criminal offenses based on all available evidence;
  • Determine the duration of exclusions for criminal conduct based on all available evidence;
  • Record the justification for the screening policy and procedures;
  • Note and keep a record of consultations and research considered in crafting the policy and procedures;
  • Train managers, hiring officials, and decision-makers on how to implement the policy and procedures con-sistent with Title VII;
  • When asking questions about criminal records, limit inquiries to records of those specific offenses the em-ployer has identified as demonstrating unfitness for performing certain jobs, so that it is clear that any exclusion on that basis was job-related and/or consistent with business necessity; and
  • Keep information about the criminal records of applicants and employees confidential (that is, only use it for the purposes for which it was collected).

The EEOC's Guidance strongly suggests that employers adhering to these guidelines will be in a position to provide an effective rebuttal to any subsequent challenges to employment decisions from the EEOC or individ-ual applicants. Accordingly, facility security officers should share this article with human-resource personnel.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.